THIS
MATTER is before me on Defendant Matthew J. Holmes's
Motion to Vacate, Set Aside, or Correct Sentence, filed
September 26, 2016. [CR Doc. 69; CV Doc. 1]. The United
States responded on January 27, 2017. [CR Doc. 77; CV Doc.
8]. Holmes filed a document entitled “Citation of
Additional New Authority” on January 30, 2017 [CR Doc.
78; CV Doc. 9] and a reply in support of his motion on March
13, 2017 [CR Doc. 79; CV Doc. 10]. The Honorable M. Christina
Armijo, Chief United States District Judge, referred this
matter to me for analysis and a recommended disposition. [CV
Doc. 2]. Having considered the briefing, relevant portions of
the underlying criminal record, and relevant authorities, and
being otherwise fully advised in the premises, I recommend
that the motion be denied and that case number 16-cv-1067
MCA/SMV be dismissed with prejudice.

Background

On
March 26, 2014, Holmes was charged via indictment with
possessing with intent to distribute crack cocaine. [CR Doc.
11]; Presentence Report (“PSR”) at 4. On defense
counsel's motion, a “Form 13” presentence
report was ordered to determine Holmes's offense level,
criminal history, and sentencing range. [CR Doc. 24]. Holmes
pleaded guilty to the offense on February 17, 2015, pursuant
to a Rule 11(c)(1)(C) plea agreement whereby the parties
agreed to a sentencing range of 108-144 months. [CR Doc. 57].
The plea agreement included a waiver of the right to appeal
or collaterally attack his conviction and sentence:

[T]he Defendant knowingly waives the right to appeal the
Defendant's conviction and any sentence, including any
fine, imposed in conformity with this Fed. R. Crim. P.
11(c)(1)(C) plea agreement, as well as any order of
restitution entered by the Court. In addition, the Defendant
agrees to waive any collateral attack to the Defendant's
conviction and any sentence, including any fine, pursuant to
28 U.S.C. §§ 2241 or 2255, or any other
extraordinary writ, except on the issue of counsel's
ineffective assistance in negotiating or entering this plea
or this waiver.

Id. at 6-7. On September 16, 2015, he was sentenced
to 130 months' imprisonment. [Doc. 8-2][1] at 16. Holmes did
not appeal his sentence. This instant case is his first
motion under § 2255.

Holmes,
proceeding pro se, moves for relief pursuant to § 2255.
He asserts several claims for ineffective assistance of both
his pretrial counsel and sentencing counsel. As to his
pretrial counsel, he claims ineffective assistance based on
counsel's failure to (1) conduct a pretrial
investigation; (2) interview potential witnesses for trial;
(3) communicate with Holmes and inform him of the
consequences of pleading guilty versus going to trial; and
(4) negotiate a more favorable plea agreement. [Doc. 1] at 4.
As to his sentencing counsel, he claims ineffective
assistance based on counsel's failure to (1) discuss the
PSR with Holmes prior to sentencing; (2) challenge his career
offender sentencing enhancement; and (3) file a notice of
appeal, despite Holmes's request that counsel do so.
Id. at 5.

In
response, the government argues that the appellate waiver
bars several of Holmes's claims, namely all those
pertaining to his sentencing counsel and the claim pertaining
to his pretrial counsel's failure to investigate. [Doc.
8] at 4-7. The government moves to enforce the waiver as to
these claims, which it contends do not fall under the
exception of “ineffective assistance in negotiating or
entering [the] plea or waiver.” Id.; [CR Doc.
57] at 7. As to the remaining claims, the government argues
that Holmes fails to show that his representation was
deficient or that he was prejudiced by any alleged
ineffective assistance. [Doc. 8] at 9-10.

[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.

A
litigant who appears pro se is entitled to a liberal
construction of his allegations, though courts must apply the
same legal standards applicable to filings drafted by
attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1999). However, courts are “not required to
fashion [a pro se litigant's] arguments for him where his
allegations are merely conclusory in nature and without
supporting fact[s].” United States v. Fisher,
38 F.3d 1144, 1147 (10th Cir. 1994). “[C]onclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based.” Hall, 935 F.2d at 1110.

Legal
Standards

Ineffective
Assistance of Counsel

The
test for making a claim of constitutionally ineffective
assistance of counsel was set forth by the United States
Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, a defendant must
satisfy a two-part test:

First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial.

466 U.S. at 687. Both showings must be made to satisfy the
Strickland standard. Id. The Court need not
address both prongs of the standard if the defendant makes an
insufficient showing on one of the prongs. Id. at
697. In applying the two-part Strickland test, a
court may address the performance and prejudice components in
any order. Boltz v. Mullin, 415 F.3d 1215, 1222
(10th Cir. 2005).

Under
the first prong, a defendant must demonstrate that his
counsel's performance was deficient. The appropriate
standard for attorney performance is that of reasonably
effective assistance; the defendant must demonstrate that
counsel's representation, considering all the
circumstances, fell below an objective standard of
reasonableness based on prevailing professional norms.
See Strickland, 466 U.S. at 687-88. For
counsel's performance to be constitutionally ineffective,
it must have been “completely unreasonable, not merely
wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246
(10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d
1447, 1459 (10th Cir. 1995)). In evaluating an attorney's
performance, the Court must be highly deferential:

A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.

Strickland, 466 U.S. at 689 (internal quotation
marks omitted).

In
applying this test, the Court must give considerable
deference to an attorney's strategic decisions and
“recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.” Id. at 690. “Neither
hindsight nor success is the measure” of whether
counsel was effective, and “effective” is not
synonymous with victorious or flawless. Dever v. Kan.
State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994).
Rather, to be considered ineffective assistance of
counsel, “the representation must have been such as to
make the trial a mockery, sham, or farce, or resulted in the
deprivation of constitutional rights.” Id.
(citing Lorraine v. United States, 444 F.2d 1, 2
(10th Cir. 1971)).

In
order to satisfy the second prong of Strickland, a
defendant asserting ineffective assistance of counsel must
also affirmatively prove prejudice. Strickland, 466
U.S. at 693. “The defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the [trial] would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. at 694.

Defendants
are entitled to effective assistance of counsel during the
plea-bargaining process. Lafler v. Cooper, 566 U.S.
156, 162-63 (2012). As with other ineffective assistance of
counsel claims, the two-pronged Strickland test
applies. To establish prejudice in the context of pleas, a
defendant must “show that there is a reasonable
probability that, but for counsel's errors, [the
defendant] would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 58-59 (1985). Moreover, due process requires
that a defendant's plea of guilty be “voluntary and
knowing.” Boykin v. Alabama, 395 U.S. 238, 243
n.5 (1969). Otherwise, the plea of guilty is void.
Id. “[T]he longstanding test for determining
the validity of a guilty plea . . . is whether the plea
represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.”
Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th
Cir. 2010) (quoting Hill, 474 U.S. at 56) (internal
quotation marks omitted).

Waiver
of Collateral Attack

Waivers
of § 2255 rights in a plea agreement are
“generally enforceable.” United States v.
Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001). A
defendant may not waive the right to bring a § 2255
petition based on an ineffective-assistance-of-counsel claim
challenging the validity of the plea or the waiver itself.
Id. at 1187. However, collateral attacks falling
outside of that category are waivable, so long as the waivers
are made expressly in plea agreements. Id. at 1187
& n.4. In evaluating whether a defendant's §
2255 claim is barred by waiver, courts undertake a
three-pronged analysis to determine: (1) whether the disputed
claim falls within the scope of the waiver; (2) whether the
defendant knowingly and voluntarily waived his rights; and
(3) whether enforcing the waiver would result in a
miscarriage of justice. United States v. Viera, 674
F.3d 1214, 1217 (10th Cir. 2012) (citing United States v.
Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)).

As to
the first prong, to determine the scope of waiver, courts
“apply principles of contract law and examine the plain
language of the plea agreement.” United States v.
Pam, 867 F.3d 1191, 1201 (10th Cir. 2017). Courts will
“strictly construe” the scope of the waiver, and
“any ambiguities in these agreements will be read
against the Government and in favor of a defendant's
[collateral attack] rights.” Hahn, 359 F.3d at
1325 (quoting United States v. Andis, 333 F.3d 886,
890 (8th Cir. 2003) (en banc)); see also Pam, 867
F.3d at 1201. As to the second prong, the defendant bears the
burden of presenting evidence that he did not knowingly and
voluntarily enter the plea agreement or understand the waiver
of his collateral attack rights. Hahn, 359 F.3d at
1329. Finally, as to the third prong, a miscarriage of
justice occurs where (1) the court relied on an impermissible
factor such as race; (2) ineffective assistance of counsel in
connection with negotiating the waiver renders the waiver
invalid; (3) the sentence exceeds the statutory maximum; or
(4) the waiver is otherwise unlawful. Id. at 1327.
To show that a waiver is “otherwise unlawful, ”
the defendant must show that “the error seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).

Holmes
makes several claims for ineffective assistance of counsel
regarding his pretrial counsel's performance during the
plea-bargaining process. Specifically, he argues that his
pretrial counsel failed to (1) “conduct an adequate and
independent pretrial investigation, ” (2) “inform
him of the relevant circumstances and likely consequences of
pleading guilty as opposed to proceeding to trial, ”
(3) “interview potential defense witnesses for trial,
” and (4) “[a]ttempt to negotiate a more
favorable plea agreement.” [Doc. 1] at 4. I find that
Holmes fails to satisfy either prong of the
Strickland standard as to any of these claims, each
of which I consider more fully below.

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